PSP FRANCHISING LLC v. Juan Daniel P
Claim Number: FA1510001642589
Complainant is PSP FRANCHISING LLC (“Complainant”), represented by Jennifer M. Hetu of Honigman Miller Schwartz and Cohn LLP, Michigan, USA. Respondent is Juan Daniel P (“Respondent”), Argentina.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <petsuppliesplus.org>, registered with PDR Ltd. d/b/a PublicDomainRegistry.com.
The undersigned certifies he has acted independently and impartially and to the best of his knowledge has no known conflict in serving as Panelist in this proceeding.
Houston Putnam Lowry, Chartered Arbitrator, as Panelist.
Complainant submitted a Complaint to the Forum electronically on October 15, 2015; the Forum received payment on October 15, 2015.
On Oct 16, 2015, PDR Ltd. d/b/a PublicDomainRegistry.com confirmed by e-mail to the Forum that the <petsuppliesplus.org> domain name is registered with PDR Ltd. d/b/a PublicDomainRegistry.com and that Respondent is the current registrant of the name. PDR Ltd. d/b/a PublicDomainRegistry.com has verified that Respondent is bound by the PDR Ltd. d/b/a PublicDomainRegistry.com registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On October 16, 2015, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of November 5, 2015 by which Respondent could file a Response to the Complaint, via e-mail to all entities and persons listed on Respondent’s registration as technical, administrative, and billing contacts, and to postmaster@petsuppliesplus.org. Also on October 16, 2015, the Written Notice of the Complaint, notifying Respondent of the e-mail addresses served and the deadline for a Response, was transmitted to Respondent via post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts.
Having received no response from Respondent, the Forum transmitted to the parties a Notification of Respondent Default.
On November 9, 2015, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Houston Putnam Lowry, Chartered Arbitrator, as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the Forum has discharged its responsibility under Paragraph 2(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules") "to employ reasonably available means calculated to achieve actual notice to Respondent" through submission of Electronic and Written Notices, as defined in Rule 1 and Rule 2. Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the Forum's Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any response from Respondent.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
A. Complainant and Its Goods and Services
1. A Well-Known, Booming Business. Complainant is an extremely well-known animal specialty store with locations throughout the U.S. that features a wide-variety of animal products and accessories, including food, housing, bedding, toys, and grooming products, for dogs, cats, birds, fish, reptiles, and other small animals. Complainant opened its first store using the PET SUPPLIES PLUS Mark in 1988, and Complainant first offered franchising services under the PET SUPPLIES PLUS Mark in 1990. Complainant’s business has expanded in recent years to include grooming, as well as training and obedience classes at many locations. Additionally, Complainant hosts adoption events and other special events such as pet vaccination clinics. Complainant’s flagship website, PetSuppliesPlus.com (“Complainant’s Website”), has been in use by Complainant since 1997. Since opening its first store in the United States under the PET SUPPLIES PLUS Mark, Complainant has spent substantial sums of money to promote and advertise the brand. Complainant’s marketing, advertising, and promotion have been successful as demonstrated by the response of consumers. In 2010, Complainant had sales of $549 million dollars, and more recently, in 2015 Complainant’s sales are in excess of $800 million dollars. As of 2015, there are over 315 PET SUPPLIES PLUS stores in 25 states, making PET SUPPLIES PLUS one of the largest retailers of pet foods and supplies in the country.
2. Incredibly Valuable Goodwill. The popularity of the PET SUPPLIES PLUS brand and the resulting consumer recognition is evidenced by Complainant’s continued expansion throughout the U.S. and its strong sales figures. The strong sales figures of the PET SUPPLIES PLUS stores and its continuous growth indicates that that PET SUPPLIES PLUS is a famous trademark and a brand of incredibly valuable goodwill to Complainant.
3. Complainant’s Website. Complainant’s primary website is at www.PetSuppliesPlus.com. Complainant’s Website is comprised of the distinctive and well-known PET SUPPLIES PLUS Mark. Complainant’s Website not only provides consumers with PET SUPPLIES PLUS store locations, but it also provides information about the products and services that Complainant offers at its PET SUPPLIES PLUS stores throughout the U.S., the PET SUPPLIES PLUS monthly flyer and information about email offers, information about franchising opportunities, and information related to animal care generally. The search metric database Alexa.com ranks the PetSuppliesPlus.com site as among the top 17,000 sites in the United States. Complainant’s Website serves as a direct and vital link to its customers. Complainant also owns the domain name PetSuppliesPlus.us, which also includes the distinctive and well-known PET SUPPLIES PLUS Mark. Collectively, the PetSuppliesPlus.com and PetSuppliesPlus.us domain names will are referred to as the “Pet Supplies Plus Domain Names.”
B. Complainant’s Trademarks
1. The PET SUPPLIES PLUS Mark symbolizes the tremendous goodwill associated with Complainant and Complainant’s services. The PET SUPPLIES PLUS Mark is well-known, distinctive, and extremely valuable. The PET SUPPLIES PLUS Mark has been widely promoted among members of the general consuming public. The PET SUPPLIES PLUS Mark exclusively identifies Complainant and its services. Furthermore, due to widespread, continuous, and highly publicized use throughout the United States, the PET SUPPLIES PLUS Mark has become famous and was famous before Respondent registered the Domain Name in 2014.
2. Complainant owns the following U.S. trademark registrations for the PET SUPPLIES PLUS Mark (in word, design, or stylized form):
a. U.S. Reg. No. 1708560 for the mark PET SUPPLIES “PLUS” filed November 8, 1990, and issued August 18, 1992, for use in connection franchising and rendering technical aid and assistance in the establishment and operation of pet merchandise stores and retail discount pet foods and supplies store services;
b. U.S. Reg. No. 1712087 for the mark PET SUPPLIES PLUS filed November 8, 1990, and issued September 1, 1992, for use in connection with franchising and rendering technical aid and assistance in the establishment and operation of pet merchandise stores and retail discount pet foods and supplies store services;
c. U.S. Reg. No. 2190176 for the mark PET SUPPLIES “PLUS” & Design filed April 14, 1995, and issued September 22, 1998, for use in connection with franchising and rendering technical aid and assistance in the establishment and operation of pet merchandise store services and retail pet foods and supplies store services; and
d. U.S. Reg. No. 3135599 for the mark PET SUPPLIES “PLUS” YOUR PET’S FAVORITE STORE filed August 31, 2005, and issued August 29, 2006, for use in connection with retail pet foods and supplies store services; franchising and rendering technical aid and assistance in the establishment and operation of pet merchandise stores.
3. Complainant’s trademark rights in the PET SUPPLIES PLUS Mark, based on its trademark registrations and common law rights acquired through the use of the PET SUPPLIES PLUS Mark, and the corresponding Pet Supplies Plus Domain Names, long predate Respondent’s registration of the Domain Name in 2014.
C. Respondent’s Infringing Activities and Bad Faith Acts
1. Respondent misappropriated Complainant’s goodwill when it registered the Domain Name, which is confusingly similar to Complainant’s PET SUPPLIES PLUS Mark and the Pet Supplies Plus Domain Names. Specifically, the Domain Name is comprised entirely of Complainant’s registered trademark, namely, PET SUPPLIES PLUS, and the Pet Supplies Plus Domain Names, with the only difference being that the Domain Name utilizes the “.org” top- level domain. The addition of a gTLD is of no consequence to the Policy ¶4(a)(i) analysis. See Isleworth Land Co. v. Lost in Space, SA, FA 117330 (Nat. Arb. Forum Sept. 27, 2002) (“[I]t is a well established principle that generic top-level domains are irrelevant when conducting a Policy
¶4(a)(i) analysis.”).
Accordingly, consumers who encounter the Domain Name are likely to assume that it relates to Complainant and its business.
2. Given the consumer recognition, distinctiveness, and fame of Complainant’s PET SUPPLIES PLUS Mark, there can be no doubt but that Respondent registered the Domain Name to trade upon Complainant’s goodwill and to attract and divert Complainant’s customers for profit. Respondent’s Domain Name consists of the well-known PET SUPPLIES PLUS Mark, and by the time Respondent registered the Domain Name, Complainant’s PET SUPPLIES PLUS Mark had been well-established.
3. Moreover, the website resolving at PETSUPPLIESPLUS.ORG, (the “Infringing Website”) contains various links to commercial websites that feature pet products, but no other content that would provide any good faith reason for the registration. No bona fide goods and services appear to have been offered on the Infringing Website. This further demonstrates that the Domain Name was intentionally derived from Complainant’s PET SUPPLIES PLUS Mark, rather than representing any unique goodwill or identity of the Respondent.
4. Respondent’s use of the Domain Name with the Infringing Website was intentionally designed to cause a likelihood of confusion with Complainant and its services and to deceive consumers into mistakenly believing that Respondent is authorized, licensed, or sponsored by Complainant, or is otherwise connected, associated, or affiliated with Complainant and/or its PET SUPPLIES PLUS Mark and Complainant’s Website. The Infringing Website does not currently contain anything of substance or any legitimate offering of products or services, and only links to various pet-product related websites, including links to Complainant and Complainant’s competitors. Moreover, the Domain Name is strikingly similar to the Pet Supplies Plus Domain Names.
5. As evidenced above, Respondent’s misappropriation of the Domain Name has injured and will continue to irreparably injure the reputation and hard-earned goodwill of Complainant and its PET SUPPLIES PLUS Mark. If Respondent is allowed to retain ownership of the infringing Domain Name, Internet users will continue to be confused and deceived, and Complainant’s reputation will be harmed.
D. RESPONDENT HAS NO RIGHTS OR LEGITIMATE INTEREST IN THE DOMAIN NAME
1. As stated above, Respondent is not using, has not used, and/or has not demonstrated an intent to use the Domain Name in connection with a bona fide offering of goods or services. Respondent is not now and never has been commonly known by the Domain Name. Respondent is not making legitimate noncommercial or fair use of the Domain Name, without intending to mislead and divert consumers or to dilute Complainant’s PET SUPPLIES PLUS Mark for commercial gain. The Domain Name is used with the Infringing Website, which merely contains hyperlinks to various commercial websites, including links to Complainant’s competitors’ websites.
2. Respondent is not associated with Complainant in any way, nor is Respondent authorized to use Complainant’s PET SUPPLIES PLUS Marks. However, the Infringing Website prominently features the following language at the top of the site: “Welcome to Pet Supplies Plus. You will find in this site supplies for dogs, cats, birds, fish, and more. PET SUPPLIES PLUS includes store locator, franchise information, events, and online ordering.” The wording in bold in the above quoted text, namely Pet Supplies Plus, is a hyperlink that re- directs consumers to Complainant’s website at PetSuppliesPlus.com. The Infringing Website also features a picture of one of Complainant’s storefronts under the “Total Pet Supply” Entry, and another link to Complainant’s website at PetSuppliesPlus.com.
3. The Infringing Website also features links to the commercial websites of Complainant’s competitors. Respondent does not sell any products, and when Internet users click on the particular product advertised on the Infringing Website, they are redirected to the underlying commercial site. In particular, the “Pet Supplies Plus Online” section of the Infringing Website features the text “Finding pet supplies for any kind of pet is easier now than it has even been,” which includes a hyperlink to the 1800PetSupplies.com website. Similarly, on the “Shopping for Pet Supplies Online” section of the Infringing Website, the text “When shopping for pet supplies, do you often find that…” contains a hyperlink to the PetSuperMarket.com website. The “Reselling Wholesale Pet Supplies” section of the Infringing Website contains the language “There are several things to think about when deciding to sell pet supplies,” which contains a hyperlink to Alibab.com.
4. Use of a disputed domain name to operate a website that displays links to third- party websites that offer goods and services that are in direct competition with a trademark owner, as well as links to a trademark owner’s website as described above, does not amount to a bona fide offering of goods or services under Policy ¶4(c)(i), nor is not a legitimate noncommercial or fair use under Policy ¶4(c)(iii). Expedia, Inc. v Steve Kerry c/o North West Enterprise, Inc., FA0605000713702 (Nat. Arb. Forum July 12, 2006). See also Nike, Inc. v. Dias, FA 135016 (Nat. Arb. Forum Jan. 7, 2002) (finding no bona fide offering of goods or services where the respondent used the complainant’s mark without authorization to attract Internet users to its website, which offered both the complainant’s products and those of the complainant’s competitors); Seiko Kabushiki Kaisha v. CS into Tech, FA 198795 (Nat. Arb. Forum Dec. 6, 2003) (“Diverting customers, who are looking for products relating to the famous SEIKO mark, to a website unrelated to the mark is not a bona fide offering of goods or services under Policy ¶4(c)(i), nor does it represent a noncommercial or fair use under Policy ¶4(c)(iii).”). Further, Respondent likely collects “click-through” or “pay-per-click” profits by directing Internet users to the underlying commercial websites. Such use does not amount to a bona fide offering of goods or services under Policy ¶4(c)(i) or a legitimate noncommercial or fair use of the disputed domain name under Policy ¶4(c)(iii). See Vanguard Trademark Holdings USA LLC v. Server Thoughts, FA1112001421216 (Nat. Arb. Forum February 3, 2012) (holding that the respondent’s use of a domain name used in connection with a website that features links to the websites of the complainant’s competitors, while likely receiving profits in the form of “click-through” associated with the visits of Internet users to the websites resolving from the hosted links, does not amount to a bona fide offering of goods or services under Policy ¶4(c)(i) or a legitimate noncommercial or fair use of the disputed domain name under Policy ¶4(c)(iii)); ALPITOUR S.p.A. v. balata inc, FA FA0701000888649 (Nat. Arb. Forum Feb. 27, 2007) (finding that “using the confusingly similar <viaggidea.com> domain name to operate a website that features links to various commercial websites from which Respondent presumably receives referral fees . . . is neither a bona fide offering of goods or services pursuant to Policy ¶4(c)(i) nor a legitimate non-commercial or fair use pursuant to Policy ¶4(c)(iii).”); and Carey International, Inc. d/b/a Manhattan International Limousine Network Ltd v. Alex Kogan, FA FA0505000486191 (Nat. Arb. Forum July 29, 2005) (holding that a respondent’s use of disputed domain names, which were confusingly similar to the mark of a complainant, to market limousine services competing with the business of that complainant, was not a bona fide offering of goods or services under Policy ¶4(c)(i), where that respondent appropriated the mark in a domain name in order to profit from its use.).
E. RESPONDENT’S BAD FAITH UNDER SECTION 4(B) OF THE UDRP
1. Respondent’s registration and use of the Domain Name meets the bad faith element set forth in Sections 4(b)(iii) and (iv) of the UDRP. Respondent registered a Domain Name comprised entirely of the PET SUPPLIES PLUS Mark, which is a distinct and famous trademark. When coupled, the words PET SUPPLIES PLUS have no meaning other than as a trademark. Respondent uses the Domain Name to divert Internet users to its Infringing Website and away from Complainant’s legitimate website, PetSuppliesPlus.com. Respondent’s use of the Domain Name disrupts Complainant’s business by diverting consumers and such use infringes upon and dilutes Complainant’s PET SUPPLIES PLUS Mark.
2. Respondent’s registration and use of the Domain Name meets the bad faith element set forth in Section 4(b)(i) and (iv) of the UDRP. Respondent has no legitimate interest in the Domain Name, it is clearly confusingly similar to Complainant’s PET SUPPLIES PLUS Mark and Complainant’s Pet Supplies Plus Domain Names, and because Respondent is using the Infringing Website in a confusing manner to lead consumers to believe that it is associated with Complainant. Therefore, there can be no explanation other than that Respondent is attempting to highjack the Domain Name for financial gain or intentionally attracting users to the Infringing Website for commercial gain by creating a likelihood of confusion with the PET SUPPLIES PLUS Mark. As mentioned above, Respondent uses the Domain Name in connection with its Infringing Website, which features links to Complainant’s PetSuppliesPlus.com website, as well as the commercial websites of Complainant’s competitors. See Zee TV USA, Inc. v. Siddiqi, FA 721969 (Nat. Arb. Forum July 18, 2006) (finding that the respondent engaged in bad faith registration and use by using a domain name that was confusingly similar to the complainant’s mark to offer links to third-party websites that offered services similar to those offered by the complainant); see also Red Hat, Inc. v. Haecke, FA 726010 (Nat. Arb. Forum July 24, 2006) (finding that the respondent engaged in bad faith registration and use pursuant to Policy ¶4(b)(iv) by using the disputed domain names to operate a commercial search engine with links to the products of the complainant and to complainant’s competitors, as well as by diverting Internet users to several other domain names).
3. Respondent likely collects “click-through” or “pay per click” profits by directing Internet users to the underlying commercial websites. Respondent does not directly sell any of the products it features on the Infringing Website. Respondent references particular products using hyperlinks on the Infringing Website, which go directly to the third-party websites. See Exhibit P. See Provide Gifts, Inc. d/b/a RedEnvelope v. Privacy Ltd. Disclosed Agent for YOLAPT c/o Domain Admin, FA0909001286921 (Nat. Arb. Forum Nov. 9, 2009) (“Respondent has created a substantial likelihood of confusion as to the source and affiliation of the<redenevelope.com> domain name and the corresponding website. Respondent benefits from such a likelihood of confusion, as it receives referral fees for the competitive upscale gifts advertisements that are displayed to the diverted Internet users. The Panel finds this to be adequate evidence of Respondent’s bad faith registration and use pursuant to Policy ¶4(b)(iv).”), and Univ. of Houston Sys. v. Salvia Corp., FA 637920 (Nat. Arb. Forum Mar. 21, 2006) (“Respondent is using the disputed domain name to operate a website which features links to competing and non-competing commercial websites from which Respondent presumably receives referral fees. Such use for Respondent’s own commercial gain is evidence of bad faith registration and use pursuant to Policy ¶4(b)(iv).”).
4. Lastly, because of the fame of the PET SUPPLIES PLUS Mark, it is virtually impossible to believe that Respondent did not have prior knowledge of Complainant’s rights when it registered the Domain Name. However, even without direct evidence of knowledge, the Panel may find that Respondent had constructive knowledge of Complainant’s marks, because the marks are well known and federally registered, and because Respondent’s use is so transparently opportunistic. See Orange Glo Int’l v. Blume, FA0208000118313 (Nat. Arb. Forum Oct. 4, 2002) (“Complainant’s OXICLEAN mark is listed on the Principal Register of the USPTO, a status that confers constructive notice on those seeking to register or use the mark or any confusingly similar variation thereof”). “[T]here is a legal presumption of bad faith, when Respondent reasonably should have been aware of Complainant’s trademarks, actually or constructively.” Digi Int’l v. DDI Sys., FA0209000124506 (Nat. Arb. Forum Oct. 24, 2002); See also Sea World, Incorporated v. Holix Inc., FA0702000924533 (Nat. Arb. Forum April 19, 2007) (“registration of a domain name containing Complainant’s well-known mark with knowledge of Complainant’s rights is evidence of bad faith registration and use pursuant to Policy ¶4(a)(iii)”); Samsonite Corp. v. Colony Holding, FA0003000094313 (Nat. Arb. Forum April 17, 2000) (finding that evidence of bad faith includes actual or constructive knowledge of a commonly known mark at the time of registration). Accordingly, there is a presumption of bad faith here.
B. Respondent
Respondent failed to submit a formal Response in this proceeding.
Respondent did send an email stating, “Hola!
I will not respond to the dispute. If you want, you can accelerate the process, I voluntarily give in the domain name. This is just a simple blog, if I new they wanted it I would give it before. Nobody ask me.
It was free to register!!! USD 10 ! I don't understand this companies...”
(1) the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(2) Respondent has no rights or legitimate interests in respect of the domain name; and
(3) the domain name has been registered and is being used in bad faith.
Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable."
Paragraph 4(a) of the Policy requires Complainant prove the following three elements to obtain an order cancelling or transferring a domain name:
(1) the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(2) Respondent has no rights or legitimate interests in respect of the domain name; and
(3) the domain name has been registered and is being used in bad faith.
In view of Respondent's failure to submit a response, the Panel shall decide this administrative proceeding on the basis of Complainant's undisputed representations pursuant to paragraphs 5(e), 14(a) and 15(a) of the Rules and draw such inferences it considers appropriate pursuant to paragraph 14(b) of the Rules. The Panel is entitled to accept all reasonable allegations and inferences set forth in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (holding that the respondent’s failure to respond allows all reasonable inferences of fact in the allegations of the complaint to be deemed true); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”).
Complainant uses the PET SUPPLIES PLUS mark in connection with an animal specialty store with 315 locations in 25 states throughout the United States that feature a wide-variety of animal products and accessories, including food, housing, bedding, toys and grooming products. Complainant owns the PET SUPPLIES PLUS mark through its various United States Patent and Trademark Office (“USPTO”) trademark registrations (e.g., Reg. No. 1712087, registered September 1, 1992). A trademark registration with the USPTO (or other governmental authority) sufficiently demonstrates Complainant’s rights in the PET SUPPLIES PLUS mark under Policy ¶4(a)(i). See Vivendi Universal Games v. XBNetVentures Inc., FA 198803 (Nat. Arb. Forum Nov. 11, 2003) (“Complainant's federal trademark registrations [with the USPTO] establish Complainant's rights in the BLIZZARD mark.”). Complainant need not have registered its mark in Respondent’s home country of Argentina.
Complainant claims the disputed domain name is confusingly similar to the PET SUPPLIES PLUS mark under Policy ¶4(a)(i) because Respondent has simply removed the spacing between the words of the mark and attached the gTLD “.org.” The omission of spaces from a domain name must be ignored because domain name syntax prohibits spaces. Likewise, TLDs (whether gTLDs or ccTLDs) must be ignored under a Policy ¶4(a)(i) analysis because domain name syntax requires them. See Am. Int’l Group, Inc. v. Domain Admin. Ltd., FA 1106369 (Nat. Arb. Forum Dec. 31, 2007) (finding that “spaces are impermissible and a generic top-level domain, such as ‘.com,’ ‘.net,’ ‘.biz,’ or ‘.org,’ is required in domain names. Therefore, the panel finds that the disputed domain name [<americangenerallifeinsurance.com>] is confusingly similar to the complainant’s [AMERICAN GENERAL] mark.”). The disputed domain name is confusingly similar to the PET SUPPLIES PLUS mark under Policy ¶4(a)(i).
The Panel finds Policy ¶4(a)(i) satisfied.
Complainant must first make a prima facie case Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶4(a)(ii). Then the burden shifts to Respondent to show it has rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006) (holding that the complainant must first make a prima facie case that the respondent lacks rights and legitimate interests in the disputed domain name under UDRP ¶4(a)(ii) before the burden shifts to the respondent to show that it does have rights or legitimate interests in a domain name); see also AOL LLC v. Gerberg, FA 780200 (Nat. Arb. Forum Sept. 25, 2006) (“Complainant must first make a prima facie showing that Respondent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, then the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.”).
Complainant claims Respondent lacks rights or legitimate interests in the disputed domain name under Policy ¶4(a)(ii). Respondent is not commonly known by the disputed domain name. “Juan Daniel P” is listed as registrant of the disputed domain name in the WHOIS information. There is no obvious connection between the Respondent’s name and the domain name. Respondent has failed to submit any formal response in this proceeding and therefore has not refuted any of Complainant’s contentions. In fact, Respondent seems to unofficially consent to an order of transfer entering. This Panel finds Respondent is not commonly known by the disputed domain name under Policy ¶4(a)(ii). See Instron Corp. v. Kaner, FA 768859 (Nat. Arb. Forum Sept. 21, 2006) (finding that the respondent was not commonly known by the disputed domain names because the WHOIS information listed “Andrew Kaner c/o Electromatic a/k/a Electromatic Equip't” as the registrant and there was no other evidence in the record to suggest that the respondent was commonly known by the domain names in dispute).
Complainant claims Respondent has failed to provide a bona fide offering of goods or services, or a legitimate noncommercial or fair use of the disputed domain name. Respondent uses the disputed domain name to host a variety of links that resolve to Complainant’s competitors. This does not constitute a bona fide offering of goods or services, or a legitimate noncommercial or fair use of a disputed domain name. See Compania Mexicana de Aviacion, S.A. de C.V. v. Bigfoot Ventures LLC, FA 1195961 (Nat. Arb. Forum July 14, 2008) (holding that the respondent had not demonstrated a bona fide offering of goods or services or a legitimate noncommercial or fair use when “the website resolving from the disputed domain name displays links to travel products and services, which directly compete with Complainant’s business”). Respondent has failed to provide a bona fide offering of goods or services, or a legitimate noncommercial or fair use of the disputed domain name under Policy ¶4(c)(i) and Policy ¶4(c)(iii).
The Panel finds Policy ¶4(a)(ii) satisfied.
Complainant claims Respondent has registered and is using the disputed domain name in bad faith under Policy ¶4(a)(iii). Respondent displays competing hyperlinks on the website, which constitutes bad faith under Policy ¶4(b)(iii). Respondent’s behavior disrupts Complainant’s business, which constitutes bad faith specifically under Policy ¶4(b)(iii). See Univ. of Texas Sys. v. Smith, FA 1195696 (Nat. Arb. Forum July 7, 2008) (finding that using the resolving website to divert Internet users to the complainant’s competitors constituted bad faith registration and use under Policy ¶4(b)(iii)).
Respondent presumably profits through the hosting these competing hyperlinks on its website through pay-per-click fees, which constitutes bad faith under Policy ¶4(b)(iv). See AltaVista Co. v. Krotov, D2000-1091 (WIPO Oct. 25, 2000) (finding bad faith under Policy ¶4(b)(iv) where the respondent’s domain name resolved to a website that offered links to third-party websites that offered services similar to the complainant’s services and merely took advantage of Internet user mistakes). Respondent registered and uses the domain name in bad faith under Policy ¶4(b)(iv).
Complainant claims Respondent had actual knowledge of Complainant’s mark when it registered the disputed domain name. In light of the contents of Respondent’s website, Respondent cannot make a credible argument it didn’t know about Complainant’s mark. This means Respondent registered the disputed domain name in bad faith under Policy ¶4(a)(iii). See Minicards Vennootschap Onder FIrma Amsterdam v. Moscow Studios, FA 1031703 (Nat. Arb. Forum Sept. 5, 2007) (holding that respondent registered a domain name in bad faith under Policy ¶4(a)(iii) after concluding that respondent "actual knowledge of Complainant's mark when registering the disputed domain name"); see also Pfizer, Inc. v. Suger, D2002-0187 (WIPO Apr. 24, 2002) (finding that because the link between the complainant's mark and the content advertised on the respondent's website was obvious, the respondent "must have known about the Complainant's mark when it registered the subject domain name").
The Panel finds Policy ¶4(a)(iii) satisfied.
Having established all three elements required under the ICANN Policy, the Panel concludes relief shall be GRANTED.
Accordingly, it is Ordered the <petsuppliesplus.org> domain name be TRANSFERRED from Respondent to Complainant.
Houston Putnam Lowry, Chartered Arbitrator, Panelist
Dated: Thursday, November 12, 2015
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